Committee on the Judiciary v. Harriet Miers (Amicus Brief)

In Brief – The Brennan Center for Justice filed an amici brief asking the D.C. District Court to allow Congress to proceed with its efforts to enforce the subpoenas issued against former White House Chief of Staff Joshua Bolten and former White House counsel Harriet Miers in the executive privilege case, Committee on the Judiciary, United States House of Representatives v. Harriet Miers et al., related to the contentious 2006 firing of nine U.S. Attorneys.

Question Presented – Does the judicial branch have a role in determining whether the President can frustrate Congress’s powers to obtain information necessary to restore public confidence in the justice system?  And, does the judiciary play a role in assessing the need for legislation to prevent recurrence of White House wrongdoing?  

Procedural History – The case was brought before the D.C. District Court against Miers and Bolten by the House Committee on the Judiciary.  The Brennan Center and co-amici filed their brief on May 29, 2008, in opposition of the defendants’ attempt to dismiss the case.  On July 31, 2008, the D.C. District ruled that former White House employees must cooperate with the House Judiciary Committee’s investigation. 

In Detail – The case of Committee on the Judiciary, United States House of Representatives v. Harriet Miers et al. raises questions about the extent of Congress’s powers to obtain the information necessary to assess the misuse of the federal criminal justice system.  Grave charges have been levied against the White House based on substantial evidence that the criminal justice system may have been perverted to influence prosecutions for partisan purposes.  The House Judiciary Committee is investigating what role White House officials had in the firing of nine U.S. Attorneys.  In carrying out its investigation, the Committee issued subpoenas to compel Harriet Miers and Joshua Bolten to cooperate with the investigation.  Congress’s investigation, however, has been thwarted by repeated White House refusal to negotiate access to testimony and to critical information about the source of possible improprieties.

Thus, Congress’s decision to involve the District Court in resolving this controversy by enforcing congressional subpoenas is particularly appropriate.  If Congress cannot test the legality of the defendants’ executive privilege claims in court—when it has already explored reasonable alternatives—the Constitution’s Separation of Powers is in danger.  

The Brennan Center for Justice strongly opposed the motion that would have dismissed this controversy.  The Center found that principle, history, and binding precedent confirmed the need for the Court to resolve the disagreement by granting the use of congressional subpoenas.  On July 31, 2008, the D.C. District ruled that former White House employees must cooperate with the House Judiciary Committee’s investigation.   

The Rutherford Institute, Judicial Watch, and Citizens for Responsibility and Ethics in Washington were amici curiae on this brief with the Brennan Center.